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Five Things to Consider When Selling Your Practice to a Private Equity Firm

Five Things to Consider When Selling Your Practice to a Private Equity Firm

By Howard Bogard, Burr Forman

A growing number of physicians are selling their medical practices to private equity firms in order to “monetize” their practice, as well as to access capital and obtain operational efficiencies. In the Southeast, we are seeing consistent private equity activity in the specialties of anesthesiology, gastroenterology, dermatology, ophthalmology, oncology, ENT, and internal medicine, as well as others. 

 Private equity firms generally use capital from wealthy individuals, pension funds and university endowments to invest in various industries with the goal of obtaining a return on investment of 20% or more.  To start, the private equity firm will purchase a large, well-managed (“platform”) medical practice and thereafter will acquire additional practices in order to increase the number of employed physicians throughout a defined geographic area.  The goal is to grow revenue and decrease cost and then sell the practices within three to seven years of acquisition.

 If you are considering a sale to a private equity firm, there are several things to consider:

  1. Valuation of the Practice.  A private equity firm generally determines the purchase price for a medical practice based on a multiple of EBITDA (earnings before interest, taxes, depreciation, and amortization) as a measure of the operating performance of the practice. The multiple can run anywhere from 4 to 12 times EBITDA, with a platform or larger practice obtaining a multiple on the higher end of the range.
  2. Payment of the Purchase Price.  The purchase price is typically a combination of cash plus “roll-over” equity in the buyer from 10% to 30% of the total purchase price.  For example, if the total purchase price is $10 million, $8 million could be paid in cash at closing and $2 million paid as equity in the buyer.  When the buyer sells, the physicians receive a return on their roll-over equity.  A portion of the purchase price may also be paid by a promissory note with payment contingent on the physicians meeting certain revenue benchmarks.  
  3.  Expect a Change in Compensation. After closing, the physicians will become employees of the private equity buyer. In return for a large up-front purchase price, typically a physician will be paid less in annual compensation as compared to pre-closing compensation amounts, although “guaranteed” salaries for a period of time can be negotiated.  Compensation is based on a variety of factors, including collections from personally performed services, plus a percentage of ancillary revenue and/or a percentage of overall profits. Physicians considering a private equity sale should analyze and compare their expected compensation over a three to five year period in private practice versus the same period under a private equity model, to include the up-front payment.
  4. Penalties for Early Departure.  Typically, a private equity firm will require the selling physicians to sign a five-year employment agreement. In the event a physician leaves employment for certain reasons within a defined time period, the departing physician will be required to repay some of the purchase price he or she received (a “claw-back”).  Typically, the claw-back period runs from three to five years after the start of employment, with more money repaid in the first year of the claw-back as compared to the last year. In addition, the selling physicians are required to sign non-compete and non-solicitation/no-hire agreements that restrict the physician’s ability to compete with the private equity buyer in the event the physician leaves the practice.
  5. Loss of Control.  One of the benefits of being in private practice is that the physician owners make the decisions.  If a practice sells to a private equity firm, a management company (owned by the private equity firm) will manage the practice and will have authority to make essentially all operating decisions, other than clinical/medical decisions, which remain within the control of the physicians.  Oftentimes, there is a clinical management board or committee comprised of physicians and private equity representatives that has authority to address certain issues.  However, if the practice is well run and profitable (hence the reason the private equity firm is interested in the practice), in my experience, the private equity firm does not make significant changes without first consulting with the physicians.

Howard Bogard is a Partner at Burr & Forman LLP and chairs the firm’s Health Care Practice Group.  Howard can be reached at 205-458-5416 or at hbogard@burr.com.

Posted in: Legal Watch, Management, Members

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Physicians Perspective: Dr. Chris Adams Talks Telemedicine

Physicians Perspective: Dr. Chris Adams Talks Telemedicine

Adversity and necessity mandate invention. 

During the COVID-19 pandemic, telemedicine has been transformed almost overnight into a necessary medical tool for remaining connected to our patients.  Without warning, physicians suddenly found themselves in the position of adding communication technologies, learning regulatory requirements, and adapting to an entirely new way of interacting with patients, sometimes reinventing their standard clinic procedures.  Similarly, government and private health care had to modify longstanding obstacles and prohibitions by allowing interstate practice and revising reimbursement policies.

I doubt there is a physician in our state who believes they could have managed their patients through this pandemic without the benefit of telemedicine.  Having said that, telemedicine is not a panacea. 

Practicing in a rural environment, we have discovered that bandwidth challenges are a huge issue.  Older patients also have vision and hearing challenges that make telemedicine less effective than face-to-face visits.  There is still an enormous amount of paperwork involved in conducting a telemedicine visit, it is not simply a matter of “picking up the phone and chatting.”  That is one reason why it is so important to have parity for video and telephone encounters. 

Despite these challenges, most clinicians would like to maintain the availability of this tool as we continue our social and medical confrontation with coronavirus.  At the same time, we also recognize inherent limitations that telemedicine imposes (I just cannot do a good knee exam over the telephone).  The challenge we now face is to define and refine best practices for employing telemedicine.  Part of this effort will require continued advocacy and encouragement of health delivery systems to support telemedicine.  Some of this will also necessitate new legal safe guards for practitioners employing this tool.

As you reflect on how this pandemic has changed your practice, please consider how you can support and contribute to the future of medicine in our state by advocating for your patients and your practice.  It is up to us as clinicians to help mold the future of healthcare delivery.

Posted in: Advocacy, Coronavirus, Members, Technology

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Op-Ed: Alabama Medical Practices Hit Hard by COVID-19, Survey Finds

Op-Ed: Alabama Medical Practices Hit Hard by COVID-19, Survey Finds

By:          John S. Meigs, Jr., MD, President Medical Association of the State of Alabama

In a span of just a few months, the coronavirus pandemic has changed the way we function as a society and has fundamentally altered our healthcare delivery system. It has exacerbated weaknesses in the infrastructure of health care and exposed limitations in current policies at a time when costs are rising and access to care is dwindling.

In an effort to understand these changes and their effects, the Medical Association of the State of Alabama released a survey summary detailing the impact of the novel coronavirus (COVID-19) on medical practices and care delivery.  The survey identified several key findings:

  • Public Health Concerns: Survey data shows that patient volume is down considerably and there are concerns that Alabamians are not going to their physician for routine care, including childhood and adult vaccinations, which will have long term public health consequences.
  • Financial Impact: More than 70% of respondents said COVID-19 has had a severe impact on practice finances, causing layoffs and furloughs and limiting access to care
  • Patient Volume: Nearly 60% said patient volume reductions cut revenues by at least 50%, underscoring the extent to which patients are delaying or skipping necessary care
  • Telemedicine Increase: More than 71% said they’re likely to continue providing telemedicine so long as insurers continue covering the services for patients
  • Liability Concerns: More than 71% are concerned about the potential liability from lack of PPE and patients canceling or delaying procedures and other medical care

In addition, a similar study[1] found that Alabama is ranked sixth in the country in the number of patients that are delaying care. While COVID-19 may change how you receive care, it’s still important to look after yourself by getting the time-sensitive medical care you need to stay healthy.

In light of the findings of the survey, the Medical Association recommends several public policy proposals to combat COVID-19’s effects on physician practices and care delivery:

  1. Allocate state stimulus funds to reimburse practices for COVID-19 related expenses
  2. Expansion of testing, PPE, and cleaning supply availability
  3. Continued coverage of telemedicine by insurers at existing rates
  4. Enactment of “safe harbor” legislation to provide liability protections to health care providers

This pandemic has made telehealth more important than ever, enabling access to care to patients whose needs can be met remotely. Telemedicine has saved lives, helped reduce the spread of the virus, and enabled physicians to care for patients in a time when they might have otherwise been unable to. However, it is not a “silver bullet” and should not be viewed as a total replacement for in-person care.

Whether in a hospital, surgery center, or in a clinic, COVID-19 has drastically changed the care we as physicians provide for our patients. We cannot allow this virus to decimate our already strained healthcare system. Supporting those who care for us is needed now more than ever.

View the complete survey summary by clicking the button above or by using this link: https://masa.informz.net/masa/data/images/2020-Survey-Graphic_Summary-FINAL.pdf

John S. Meigs, Jr., MD, President Medical Association of the State of Alabama


[1] Bean, M., 2020. States Ranked By Percentage Of Americans Delaying Care: Nationwide, 40 Percent Of Americans Are Still Delaying Care, According To A Survey From The U.S. Census Bureau.. [online] Beckershospitalreview.com. Available at: <https://www.beckershospitalreview.com/rankings-and-ratings/states-ranked-by-percentage-of-americans-delaying-care.html> [Accessed 26 August 2020].

Posted in: Coronavirus, Members

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Underwood Minority Scholarship Awarded

Underwood Minority Scholarship Awarded

The Underwood Minority Scholarship Award is named for long-time Montgomery physician and the Medical Association’s 152nd President Jefferson Underwood III, M.D. Dr. Underwood became the first African-American male to serve as President of the Association in 2018-2019. The Underwood Minority Scholarship Award is for African-American individuals underrepresented in Alabama’s medical schools and the state’s physician workforce.

It is with great pride that we award the following candidate the 2020 Underwood Minority Scholarship Award, and we wish her all the best and hope this monetary award helps her accomplish her goals:

Alicia Williams, University of Alabama at Birmingham School of Medicine

A Fort Payne native, Alicia is headed for a career in general pediatrics where she will combine her leadership, clinical skills, knowledge of sports medicine and passion for providing care in rural underserved areas of Alabama. She has had the opportunity to work with teenage youth in Birmingham through Girlz Talk, an organization that teaches professionalism, safety and reproductive education. Alicia has also presented research to Governor Kay Ivey’s team and has collaborated with Secretary Jenna Ross and the Department of Early Childhood Education.

David Bramm, MD, Director of the Rural Medicine Program at UAB states, “Alicia is a breath of fresh air. She is strong without being overbearing, confident without being cocky, devoted to her patients and utterly reliable. I have been privileged to have been a preceptor for several medical schools since 1982 and fully believe Alicia is one of the best I have ever taught. I can recommend her without reservation for the Underwood scholarship.”

Alicia graduated from Mercer University with a 4.0 GPA and a Bachelor’s degree in biology. Currently, she attends UAB School of Medicine and is expected to graduate in 2021. Alicia’s personal interests including writing music, singing and playing basketball.

“I am very grateful to be the first recipient of a scholarship that honors such a respected and esteemed physician as Dr. Underwood,” Alicia states. “This scholarship serves great purpose towards my goals as a future physician, and Dr. Underwood’s leadership and service is a great example for me and other aspiring physicians like me.”

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The Effect Differing Medical Opinions Have On Falsity and Scienter in False Claims Act Lawsuits

The Effect Differing Medical Opinions Have On Falsity and Scienter in False Claims Act Lawsuits

By: Jim Hoover with Burr Forman, LLP

There is currently a circuit split among the Federal Circuit Courts of Appeals regarding the effect differing medical opinions have on the elements of falsity and scienter in False Claims Act lawsuits.  

Earlier this year the Third Circuit Court of Appeals ruled that conflicting medical opinions can create a genuine dispute of material fact on “falsity” in a False Claims Act action. The case is United States v. Care Alternatives. This holding directly conflicts with the Eleventh Circuit’s September 2019 decision in United States v. AseraCare, which held that a mere difference in medical opinion between physicians regarding a patient’s prognosis was not enough to establish falsity under the FCA. In Care Alternatives, the Third Circuit rejected AseraCare and found that conflicting physician testimony about the validity of physician’s certifications was sufficient to raise a dispute of material fact regarding the element of “falsity.” The Third Circuit sought to make clear that in its Circuit, findings of falsity and scienter must be independent from one another for purposes of FCA liability. According to the Third Circuit, the scienter element helps limit the possibility that providers will be exposed to liability under the FCA any time the Government or relator can find an expert who disagreed with the certifying physician’s medical prognosis.

Former employees of Care Alternatives filed a qui tam action against the hospice provider, alleging the hospice had improperly admitted patients who were not eligible for Medicare’s hospice benefit and directed employees to falsify Medicare certifications in order to meet the eligibility requirements. The relators’ physician opined that in 35% of the sample cases he reviewed a reasonable physician would not have certified the patient as terminally ill with a prognosis of six months or less based on the accompanying documentation. Reviewing the same sample set, Care Alternatives’ physician disagreed, finding that a reasonable physician could reasonably certify each case. Thus, there was a disagreement among the parties’ experts. The United States District Court for the District of New Jersey agreed with AseraCare by adopting and applying AseraCare’s holding that an “objective falsehood,” something more than a retrospective difference of opinion, was required to create a genuine dispute of fact.

On appeal, the Third Circuit Court of Appeals disagreed and reversed and remand the case for consideration of the other elements of FCA liability, particularly the element of scienter. The Third Circuit noted it is well-established that subjective opinions can be false, and applied this reasoning to the FCA’s falsity element. The Third Circuit opined that AseraCare’s “objective falsity” standard improperly conflated falsity with scienter, i.e., that the whistleblower prove a certifying physician was making a knowingly false certification. The Third Circuit held that these elements must be considered separately, and the purpose of the scienter requirement is to limit the possibility that a provider could be found to violate the FCA any time the Government or a relator could find an expert who may establish falsity simply by disagreeing with a physician’s prognosis.

Thus, in the Third Circuit a determination that a claim was false does not immediately trigger FCA liability. Relators must still establish that the provider knew the claim was false when the claims was submitted. Unfortunately, however, one of the big problems for False Claims Act defendants is credibility determinations are typically reserved for the jury thus almost forcing the False Claims Act case to trial.  

Because of the circuit court split, a United States Supreme Court opinion is needed to resolve the differing circuits’ approaches. In the meantime, the key takeaway for health care providers across the country is these differing standards will be fought in FCA cases where defendants have made reasonable subjective judgments.  The arguments should focus on both the falsity element and the scienter element.  

Jim Hoover is a partner at Burr & Forman LLP and works exclusively within the firm’s Health Care Practice Group and predominantly handles healthcare litigation.

Posted in: Legal Watch, Members, MVP

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Advocacy Efforts During COVID-19

Advocacy Efforts During COVID-19

The spread of COVID-19 has affected nearly all aspects of our daily lives. For the Medical Association’s efforts in protecting physicians and patients, this was also true. Nonetheless, between March 13 (when Gov. Ivey issued the COVID-19 state of emergency) and mid-May, our advocacy work continued in full-force.

Executive Actions & Proposals

  • Worked with various stakeholders and Governor Ivey to secure liability protections via an Executive Order for physicians, their staff and their practices against frivolous COVID-19 lawsuits (summary available here);
  • Successfully advocated against multiple dangerous scope of practice expansions proposed by both state and national organizations. Among other things, these proposals would have (1) eliminated physician supervision and destroyed the team-based care model; (2) granted CRNAs the ability to prescribe controlled substances; and (3) allowed pharmacists to switch a patient’s drugs without prescriber authorization and without any requirement to notify to the prescriber or the patient; and
  • Successfully advocated against a proposal to give out-of-state telehealth corporations special treatment that physicians currently living, working, and paying taxes in Alabama do not enjoy.

Telehealth Payment Parity

  • As one of our longstanding priorities (payment parity between in-person visits and telehealth services), we were proud to see reimbursement rates addressed and the policy of parity come to fruition.

Miss our 2020 Legislative Recap, What if No One was on Call? Click here for the annual rundown.

Posted in: Advocacy, Coronavirus, Liability, Members

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Honoring Dr. Jefferson Underwood

Honoring Dr. Jefferson Underwood

Long-time Montgomery physician and Medical Association member Jefferson Underwood III, M.D., was recently honored with two distinct awards.

The Alabama Chapter American College of Physicians recognized Jefferson Underwood III, MD, FACP, as the 2020 Laureate Award recipient and the Medical Association of the State of Alabama presented Dr. Underwood with the 2020 Samuel Buford Word Award. These presentations are typically made in person at the annual meetings, but due to the cancellation of this year’s events because of COVID-19, Dr. Underwood was honored in his home with a small group of family and colleagues present.

In 2018, Dr. Underwood became the first African-American male to serve as President of the Medical Association. He previously served the Association as President-Elect, Vice President and Secretary-Treasurer.

He is a Summa Cum Laude graduate of Alabama State University in Montgomery and Meharry Medical College in Nashville, Tenn. He completed his internship and residency at D.C. General Hospital/Georgetown University in Washington, D.C.

He previously received the Douglas L. Cannon Award from the Medical Association for Outstanding Medical Journalism for Community Service, the Alabama Young Democrats Achievement Award for Community Service in Health, 2005 Physician of the Year and 2015 Montgomery’s Top Doctor by the International Association of Internal Medicine.

“It was an honor for me to present the 2020 Samuel Buford Word Award, the Medical Association’s highest honor, to Jefferson Underwood.  The Word Award is presented to a physician for outstanding service to humanity that goes above and beyond the usual call of duty.  That certainly describes Jefferson Underwood,“ said John S. Meigs, Jr., MD, current President of the Medical Association. “Whether in his service to the Association, his service to the community or his service to his profession, Jefferson has always exemplified grace, dignity and compassion with a quiet strength and conviction that characterized his own sense of fairness and respect for others that resulted in true service to humanity.”

Giving back to his community is one of Dr. Underwood’s passions. As an adjunct professor at Alabama State University, he taught biology. He also served on the board of directors for the Montgomery Area United Way, the Alliance for Responsible Individual Choices for AIDS/HIV, Montgomery County Health Department Hunt Diabetic Clinic, Central Alabama Home Health, Oxford Home Health, Father Walter’s Center for Gifted Children, Habitat for Humanity, and was the health editor for The Montgomery Advertiser.

During the presentation of the awards, Dr. Underwood was also presented with a clock from the Alabama Board of Medical Examiners as a memento of his service to the Board.  “Why do we present you with a clock?  Because, the clock represents time, and, time represents eternity.  As a member of our Board staff has said, ‘Once a member of the Board, always a member of the Board,’” Dr. Mark LeQuire, MD FACR, explains. “In preparation for this presentation, I walked about the halls of the Board building, admiring the composites of previous Board members, and was invigorated to remember the giants in medicine in the State of Alabama whom have served.  Jefferson you are one of those giants, and now, you will always be one of those giants.  The fraternity of your fellow Board members thanks you for your service, for the exemplary manner in which you modeled the perfect physician priest, for your calming demeanor and influence in times of both need and stress, and for just simply being our brother and our friend.  Remember, we will always cherish you, you will never be forgotten, and we are always at your service.  May our God bless you and yours every so richly and deeply.”

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Alabama Department of Public Health Advises Health Care Providers in Use of COVID-19 Tests not Approved by the United States Food and Drug Administration

Alabama Department of Public Health Advises Health Care Providers in Use of COVID-19 Tests not Approved by the United States Food and Drug Administration

The Alabama Department of Public Health (ADPH) supports health care workers’ efforts to care for Alabama citizens during this COVID-19 health crisis. As this public health emergency evolves, there is need for increased availability of SARS CoV-2 diagnostic testing. In response to this demand, the United States Food and Drug Administration (FDA) released policies to authorize emergency use of in vitro diagnostics to increase testing capacity and development to promote widespread testing for COVID-19. As a result, the availability of commercial testing devices proliferated, many with false claims by distributors. ADPH therefore advises health care providers to choose COVID-19 testing systems that are FDA approved when making decisions regarding their patients.

Tests not approved by the FDA can produce false results and lead to unintended consequences for the patient and broader community. A false negative result from a non-approved kit may lead someone who has COVID-19 to think they are not infected and cannot spread the illness. Patients need accurate information about their health, and health care providers and officials need accurate information to provide appropriate medical care and make public health decisions.

Currently, the most accurate FDA-approved testing available is polymerase chain reaction (PCR) assays. PCR tests can detect small amounts of the virus collected in samples from the patient’s nose or throat. Public health, commercial, and some clinical laboratories use PCR technology to diagnose COVID-19 infections. Many of these tests have FDA approval through emergency use authorization (EUA).

Serology testing is gaining momentum in the marketplace as collection of blood samples is easy and many platforms are point of care with results in minutes.  Serological tests detect if an individual’s body is developing antibodies against COVID-19. While these tests can be used to track disease, they are not reliable as or recommended for diagnostics and is even stated on most package inserts. At this time, there are only three serological tests that are EUA approved (https://www.fda.gov/medical-devices/emergency-situations-medical-devices/emergency-use-authorizations#covid19ivd).

If your facility is considering a serology-based test that is not EUA approved by FDA, understand that:

  • Currently no Centers for Disease Control and Prevention guidance exists as to how to interpret or take public health action in response to a positive or negative COVID-19 serology result.
  • These tests have not had performance reviews by FDA.
  • Negative serology results do not rule out COVID-19 in a patient.
  • Serological testing should not be the sole basis to diagnose or exclude infection, or to inform infection status. 
  • The immune response to SARS-CoV-2 infection is poorly understood at this time.
  • Cross reactivity is likely. Positive results could reflect past or present infection with non-SARS-CoV-2 strains.
  • False negative results could occur when the immune response is too low to be detected.
  • If serology-based test results are submitted to ADPH, they will not be included in the COVID-19 counts at this time due to lack of guidance regarding interpretation.

ADPH fully supports health care providers on the front lines of this pandemic and trust they will use this advisory to make informed decisions regarding their patient’s health. It is important to be aware of distributors’ false claims. Thank you for your commitment and dedication in service for the citizens of Alabama. If you have questions regarding this information, contact Burnestine Taylor, M.D., at burnestine.taylor@adph.state.al.us.

Posted in: Coronavirus, Members

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Chronic Care Management in the Coronavirus Pandemic

Chronic Care Management in the Coronavirus Pandemic

Article contributed by: Tammie Lunceford, CMPE CPC with Warren Averett

Chronic Care Management Expands Care

Several years ago, the Center for Medicare and Medicaid Services released Chronic Care Management to assist in improving patient outcomes, extend care, and improve quality in chronic illness.  The initial chronic care code, 99490 allowed for 20 minutes of non-face to face phone communication with clinical staff per month which reimbursed forty-two dollars per month.  The patient had to agree to be enrolled in the program and agree to an $8 co-pay.  Only one physician can enroll a patient and the patient must have at least two complex chronic conditions lasting more than twelve months.  Most physicians did not adopt chronic care management due to the low reimbursement, the physician had to treat all chronic conditions which excluded most specialists from participating.

Some large practices outsource chronic care management and share the reimbursement.  Whether the practice uses internal staff or outsourced staff, CCM services provide additional care and coordination to the most chronically ill.  The patients receiving this service feel more connected to their provider and a change in their status is identified quickly.  If the practice also has telemedicine, a non-face to face service can quickly become a face to face visit to address concerns. Due to the recent COVID-19 pandemic, these interactions could provide the care needed to protect the chronically ill from being exposed to the deadly virus. 

The 2020 Final Medicare Physician Fee Schedule added some provisions to Chronic Care Management services.  The addition of Principle Chronic Management allows a patient with a single high-risk chronic condition lasting more than 12 months to qualify for the program. PCM should increase the use of chronic care management with specialists, such as cardiologist and pulmonologists.  Also approved for 2020, is G2058 which is an add-on code to allow an additional 20 minutes of time spent in continuous communication with the patient.  The add-on code reimburses $37.89 and can be billed concurrently to 99490, two times monthly, per beneficiary.  The total possible reimbursement for 60 minutes of non-complex CCM is $118.01. 

The new opportunities to provide chronic care management and principle care management will allow specialists managing hundreds of patients with chronic conditions, such as, COPD or diabetes to improve the overall health of the patient, improve patient engagement, improve quality and receive reimbursement worthy of the effort.

Practices are currently working to provide many modes of communication to serve patients without seeing them in the office.  Patient portals have failed in the past because many portals were not user friendly or practices failed to make them valuable by offering valid information through the portal.  In times of crisis, such as COVID-19, it is quite possible for the phone lines to be full but utilizing the patient portal and offering CCM and PCM allows a practice to fulfill many patient’s needs without a physician or mid-level providing the interaction.

We are in crisis as COVID-19 cases increase across the nation, but we have seen monumental change through the emergency expansion of telemedicine.  As administrators and physician leaders review the options to expand communication through technology and ongoing medical management, we will be better prepared for crisis situations in the future.

Posted in: Coronavirus, Management, Members

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Charting & Documentation During the Coronavirus COVID-19 Pandemic

Charting & Documentation During the Coronavirus COVID-19 Pandemic

The world’s memory of this virus will be different when lawsuits are filed two years from now and juries try the cases two to three years after that. The acuteness of the issues, the confusion, the limited resources and the changing daily directives will not be remembered in any meaningful detail. Accordingly, the Risk Management dogma that has always emphasized charting is more important now than usual. If the standard of care is judged as care “under the same or similar circumstances”, and those circumstances are “delivering care in a COVID-19 pandemic”, how will we show those circumstances in a 2025 jury trial?  We recommend vigilant documentation.

In consideration of Alabama’s sample ventilator allocation guidance, and exemplary language from other states, Starnes, Davis, Florie, LLP. recommends the below language be charted in circumstances where a resource may be diverted away from a patient who could be in need.  The sample language specifically applies to decisions in triaging a patient and any initial treatment decisions regarding a specific (limited) resource.

Sample Language:

In making a clinical judgment regarding the allocation of [resource] during the [COVID-19 pandemic / public health emergency], I have assessed the patient’s history, symptoms, and condition and considered the limited availability of resources and clinical factors associated with the allocation of limited resources.  My clinical judgment, under the totality of the circumstances, is that [clinical decision] is appropriate for this patient as an alternative medical intervention.

We also recommend against language or specific explanations to patients as follows:

·        Language / an explanation to a patient or a patient’s family explicitly referencing financial issues or considerations.

·        Language / an explanation to a patient or patient’s family focusing the considerations on the resource itself as opposed to the specific patient.

·        Language / an explanation to a patient or patient’s family specifically documenting the condition of other patients or the specific condition of other patients receiving resources.

·        Language / an explanation to a patient or a patient’s family specifically quantifying any patient’s likelihood of successful treatment – that being the patient receiving the resource and the patient not receiving the resource.

·        Language / an explanation to a patient or a patient’s family specifically comparing patients or outcomes.

·        Language / an explanation to a patient or a patient’s family specifically referencing medical ethics.  Medical ethics underpins all clinical decisions and does not need to be specifically included in the chart.

This information is not intended to provide legal advice, and no legal or business decision should be based on its content. No representation is made that the quality of legal services to be performed is greater than the quality of legal services performed by other lawyers.  Read full disclaimer.

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